Politicians and defamation – a costly “tweet” and an even more costly “revenge”

by Brett Bolton and Matthew Wilkinson

Two recent defamation actions brought by prominent politicians have highlighted the perils of Twitter and other forms of social media for defamation defendants, and the need to check one’s facts and make reasonable enquiries before publishing something defamatory about a prominent person.

In this two-part alert series, Brett Bolton, Special Counsel and Matthew Wilkinson, Associate, explain these decisions and discuss how the outcome in one of the actions is likely to lead to calls for reform of the defamation laws in this country.

Part 1: Hockey -v- Fairfax Media Publications Pty Ltd [2015] FCA652

Judgment was delivered last week in the defamation action brought by the Federal Treasurer, Joe Hockey against the publishers of The Sydney Morning Herald (SMH), The Age and The Canberra Times newspapers.

The action followed a series of articles published in May 2014 stating that Mr Hockey was providing “privileged access” in return for donations to the Liberal Party through a fundraising body known as the North Sydney Forum (Forum). The articles claimed that the activities of the Forum were secretive and had not been properly disclosed to electoral funding bodies. The articles in the SMH and Age were headed “Treasurer for Sale” and “Treasurer Hockey for Sale” respectively.

Each of the newspapers made the articles available on their various online platforms. The online publications either contained the articles themselves or provided links to them.

Significantly, the online publications also consisted of tweets which contained only the “Treasurer for Sale” or “Treasurer Hockey for Sale” headlines. The SMH also promoted the articles with an advertising poster which contained the words “Treasurer for Sale” in large and bold font.

Mr Hockey said that the articles carried the following defamatory meanings:

That he accepted bribes that were paid to influence his decisions as Treasurer;

That he was corrupt; and

That he corruptly sold privileged access to himself in return for donations to the Liberal Party.

The newspaper publishers denied that the articles carried any of these defamatory meanings.They also argued that, even if the articles did carry those meanings or some of them, they were entitled to rely on the defence of qualified privilege.

Mr Hockey was only partially successful.The Court upheld his claim that the advertising poster and the two matters published on Twitter were defamatory and that the defence of qualified privilege was not available in respect of those publications.He was awarded general damages of $200,000.00 - $120,000.00 for the advertising poster and $80,000.00 for the two “Tweets”.

All Mr Hockey’s other claims (including his claims relating to the versions of the articles that appeared in the hard copy printed versions of the newspapers) were dismissed.

Mr Hockey’s claim in respect of the advertising poster and tweets succeeded because the Court ruled that they were separate discrete publications that could be considered in isolation from the actual words of the articles themselves.The traditional approach in defamation law is to treat the headline, the words of the article and any accompanying pictures or captions as one publication.

The Judge certainly adopted the traditional approach when considering the printed versions of the articles which appeared in “hard copy” in the newspapers.By doing so, his Honour found that those versions of the articles did not defame Mr Hockey because the actual words of the articles put the “Treasurer for Sale” headlines into their proper context and meant that, viewed as a whole, the hard copy versions were not defamatory of Mr Hockey.

The different approach taken by his Honour to the tweets was apparently because they consisted merely of the “Treasurer for Sale” headlines and, as a result, anyone reading the tweets would have to take the positive steps of clicking on a link if he or she wanted to read the article in its entirety.His Honour found that many readers of the tweets would not have taken this step and that this therefore increased the defamatory impact of the “Treasurer for Sale” headlines when viewed in isolation.

His Honour adopted a similar approach when considering the defamatory character of the advertising poster.

His Honour’s approach appears, with respect, to be inconsistent with other decisions, and it will be interesting to see whether the Fairfax defendants decide to appeal.

The decision has already sparked calls for defamation law reform, including:

A legislative amendment to make it clear that material made available on Twitter has to be treated in the same way as other online publications and hard copy publications;

Adopting the approach of some overseas jurisdictions (notably the United Kingdom) which prevent politicians from starting defamation actions without first satisfying a “serious harm” test, for example, because it relates to the politician’s private life or other matters not connected to political activities;

Giving the politician an equally prominent “right of reply” to the article in question.

No doubt there will be further debate on these matters during the coming weeks and months.

An interesting point to note is that Mr Hockey’s defamation proceedings have been adjourned to a future date. One of the matters that the lawyers will argue when the matter comes back before the court is who should pay the costs of the proceedings. This is a particularly intriguing issue given that much of the Court proceedings (including the seven day trial in March) would have been occupied by a consideration of the publications that the Court expressly found were not defamatory of Mr Hockey. His partial victory may also prove to be a pyrrhic victory if he is ordered to pay a substantial proportion of the newspapers publishers’ costs of the proceedings.

The second part in this series will be published this Wednesday, 8 July 2015. For more information or discussion, please contact HopgoodGanim’s Litigation & Dispute Resolution team.

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